AGRO PACK Vs. COMMISSIONER OF CENTRAL EXCISE, SURAT

JUDGEMENT

(1.) THE appellants are engaged in the manufacture of pesticides/agro -chemicals falling under Chapter heading 38 of CETA, 1985. During the departmental audit, it was noticed that the appellants had issued a credit note dt. 3 -11 -2001 to the consignee M/s. Aventis Crop Science (India) Ltd. for the rate difference in respect of finished goods and had taken CENVAT credit of Rs. 50,026/ - on 10 -11 -2001 on the basis of a photocopy of their own invoice No. 277, dt. 18 -8 -01. A show cause notice was issued to them on 28 -3 -2006 alleging that they have taken credit of excess duty paid by them on the basis of photocopy of their own invoice, which was not a valid document for availing CENVAT credit.

(2.) THE appellants contended that vide invoice No. 277, dt. 18 -8 -2001, they had cleared 100 kgs. of their final product in 1 Ltr. Pack whereas on account of wrong calculation, the duty was excess paid by them by taking price of 5 Ltr. Pack. As such, they had paid excess duty of Rs. 50,026/ -. This mistake was realized by them and they took the credit of the excess duty so paid and also issued credit note to their buyer for excess billing. The said demand was confirmed by original adjudicating authority on the ground that photocopy of their own invoice was not a valid document. On appeal against above, Commissioner (Appeals) rejected the same and hence the present appeal.

(3.) AFTER hearing both sides, I find that audit objection was in Feb., 2004 and the same was duly replied by the appellant in Sept., 2004. Whereas, the show cause notice was issued in March, 2006 i.e. beyond the period of limitation. Tribunal in case of CCE, Belapur v. Western Miniforge P. Ltd., 2006 (206) E.L.T. 476 (Tri -Mumbai), has held that Revenues contention that instead of taking suo motu credit, the appellant should have filed a refund claim, cannot save the demand from being time barred, when there was no intention to evade duty or suppress or mis -declare facts. There is no dispute about excess payment and non -recovery of the same from their buyer. As such, I am of the view that no mala fide can be attributed to the appellant, in which case issuance of show cause notice in 2006 for the credit availed in 2001 has to be held as barred by limitation.